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First “Public” PRB Hearing Raises More Questions Than it Answers

As expected, today’s Periodic Review Board hearing, the first so-called “public” one of these events, was completely uneventful.  In the case of Abdel Malik Ahmed Abdel Wahab Al Rahabi, the only part of the board hearing that media or NGO representatives were allowed to observe was the reading of pre-screened, scripted statements that had actually been posted the night before on the review board’s website. That took a total of 19 minutes.

This was supposed to be the Defense Department’s answer to media and human rights observers’ complaints about the secrecy of the entire Guantanamo Bay detention process. In particular, it was supposed to provide more “transparency” about why the U.S. government continues to detain so-called “unprivileged enemy combatants” captured abroad at a prison camp in Cuba for twelve years without charge or trial, even as the U.S. military prepares to withdraw its final combat troops from Afghanistan.  But if observers were hoping to learn anything more about why the detainee was imprisoned in the first place and whether he’s likely to be released anytime soon, they were sorely disappointed.

Required to meet our Defense Department escorts in Virginia at 7:30 a.m., observers then waited until 9:15 for the hearing to start.  Finally, we watched a TV screen where we could see the detainee, in white prison garb and a full beard, his two assigned “personal representatives” in military camouflage, and his private lawyer and a translator in civilian clothing, all seated at a table in a trailer at the prison camp in Guantanamo Bay, Cuba.

The board itself, made up of unnamed senior officials from six different U.S. government agencies, was at an undisclosed location somewhere in the Washington, D.C. area and could only be heard.

And what did we hear?  Nothing we couldn’t have read for ourselves off the PRB website the night before.  A disembodied voice read the government’s summary of the evidence. It said the detainee “fought on the frontlines, was a bodyguard for Usama bin Laden, and may have been selected by al Qa’aida to participate in a hijacking plot.” He’s provided “little information of intelligence value” during his incarceration at Gitmo, and there are “no conclusive indications” that he’s maintained ties with “at-large extremists” except for one former Guantanamo detainee who has since returned to his family in Yemen. The government reported that if sent home, Malik “probably would seek to return to his family in Ibb, Yemen,” although given his past ties to extremists and the “marginal security environment” there, Malik would have “ample opportunities to join AQAP [Al Qaeda in the Arabian Peninsula] if he decided to reengage.”

One of Malik’s “personal representatives” then read a short statement saying that he’s spent the past six months working with Malik and his lawyer to demonstrate that “Abdel Malik does not pose a significant threat to the security of the United States.”

In particular, his representative said that if transferred, Malik plans to return to his family, “teach, continue his education, and pursue a business of his own” – apparently based on a business plan he developed with other detainees at Guantanamo for an agricultural enterprise called “Yemen Milk and Honey Farms, Ltd.”

Finally, Malik’s longtime lawyer, David Remes, provided a more detailed statement.  Remes described Malik as a “compliant” prisoner who Guantanamo authorities see as “trustworthy” and helped ease tensions at the prison camp between detainees and guards. Remes also described Malik’s “large and supportive family,” including over 3 dozen relatives who made “the 5-hour car journey from Ibb to Sana’a to participate in the family calls the authorities allow every 2 months.” His wife and 13-year-old daughter, Ayesha, were among them. Malik hasn’t seen Ayesha since she was an infant, Remes said, and “his face lights up at the mention of her name,” he said. Ayesha “will keep him firmly anchored at home.”

Remes has been Malik’s lawyer since 2004, representing him in his petition for habeas corpus and traveling repeatedly to Yemen to meet with his family members. The Washington, D.C.-based private law firm of Covington & Burling, as co-counsel, has helped finance that representation. For the PRB hearing, Remes traveled to Yemen and videotaped interviews with Malik’s father, wife, daughter and brother-in-law, all of which he has submitted to the board to make the case that his client, if returned home, will be returning to a supportive family and community that will welcome and care for him and ensure he doesn’t join up with al Qaida terrorists.

All of this raises two very important questions about this new PRB process:

First, can it legitimately be called a “public hearing” if the only part observers are permitted to hear has all been written, government-screened and published beforehand?  Given the global controversy surrounding indefinite detention at Guantanamo Bay based on secret evidence since its creation as a prison camp in 2002, the ability of members of the public to view an actual hearing where questions are asked and answered is critical to the government’s ability to claim any legitimacy now.  But this morning, after the statements were read, the video monitor was turned off before the review board members could ask any questions.  Although the transcript of part of that question-and-answer session may eventually be released publicly, with redactions, much of the remainder of the hearing will remain classified.  Review hearings held during the Bush administration, or at the Bagram prison in Afghanistan during the Obama administration, had at least allowed observers to view the questioning of the detainee and his representatives, and their answers.  This proceeding is much more tightly controlled.

Second, what happens to detainees who don’t have lawyers conducting the sort of intensive investigation and advocacy they need to make their case? The personal representatives have only known Malik for six months, they said, and did not appear to have travelled to Yemen or met his family.  Remes’ role was critical.  But while detainees are all assigned “personal representatives,” they’re not assigned lawyers.  They’ll only have them if a well-financed volunteer is willing to take up the cause.

Malik may or may not eventually be cleared for transfer based on today’s hearing.  But what’s clear is he had a strong advocate on his side making the best possible arguments on his behalf.  Other longtime detainees may not be so lucky.

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About the Author

is Senior Counsel in Human Rights First’s Law and Security Program. Follower her on twitter @deviatar.